PALE Revised Suggested Answers

PART I TRUE OR FALSE TRUE OR FALSE. Answer TRUE if the statement is true and FALSE is the answer is false. Explain your answers in not more than two sentences. a.The Bangalore Draft, approved at a Roundtable Meeting of Chief Justices held at The Hague, is now the New Code of Judicial Conduct in the Philippines. SUGGESTED ANSWER: True. CJ Davide Jr. submitted to the SC the Bangalore Draft Code of Judicial Conduct as amended for adoption. With certain amendments to suit our distinct legal and judicial culture the Philippine Supreme Court adopted a new judicial conduct for Philippine judiciary effective June 1, 2004. (New Code of Judicial Conduct) b. An attorney ad hoc is a lawyer appointed by the court to represent an absentee defendant in a suit in which the appointment is made. SUGGESTED ANSWER: True. A counsel de oficio is an attorney appointed by the court to defend an indigent defendant in a criminal action or to represent a destitute party in a case while an attorney ad hoc or a guardian or curator ad hoc is one appointed when the absentee defendant has no counsel present in court and delay has to be avoided.

c. A charging lien, as distinguished from a retaining lien, is an active lien which can be enforced by execution. SUGGESTED ANSWER: True. Charging lien is an equitable right to have fees and lawful disbursements due a lawyer for his services in a suit secured to him out of a judgment for the payment of money and executions issued in pursuance thereof of a particular suit. It is an abstract but potential right until it is made active and operative by recording a statement of claim in the case and serving notice upon the client and adverse party. A retaining lien is a passive right and cannot be actively enforced. Source: legal and judicial ethics by Ruben e. Agpalo, p. 447 and 451. d. A lawyer cannot refuse to divulge the name or identity of his client. SUGGESTED ANSWER: False. Although the identity of the client is not covered by attorney client relationship, a lawyer may still not refuse to divulge the name or identity of his client because of 1

privileged communication protecting his client. e. A notary public is disqualified from performing a notarial act when the party to the document is a relative by affinity within the 4th civil degree. SUGGESTED ANSWER: True. The Rules on Notarial Practice provides that a notary public is disqualified from performing a notarial act if he is a spouse, common – law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth civil degree. (Sec. 3(c), 2004 Rules on Notarial Practice)

II a. What is the object of the bar examinations? Explain. (2%) SUGGESTED ANSWER: The avowed objectives of the Bar Examinations may be briefly summarized into a determination of the examinees’:(a) Logical reasoning;(b) Thorough knowledge of fundamental principles of law and their application; (c) Ability to analyze aand solve legal problems; and (d) Ability to communicate in precise language. b. What are the three (3) tests to determine conflict of interest for practicing lawyers? Explain each briefly. SUGGESTED ANSWER: 1. The first test in determining conflicting interest is whether a lawyer is duty-bound to fight for an issue or claim in behalf of one client and, at the same time, to oppose that claim for the other client. Thus, if a lawyer’s argument for one client has to be opposed by that same lawyer in arguing for the other client, there is a violation of the rule. 2.Another test is whether the acceptance of a new relation would prevent the full discharge of the lawyer’s duty of undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness or double-dealing in the performance of that duty. 3.The last test is whether the lawyer would be called upon in the new relation to use against a former client any confidential information acquired through their connection or previous employment. III a. May a party appear as his own counsel in a criminal or in a civil case? Explain. SUGGESTED ANSWER: 2

The Rules recognize the right of an individual to represent himself in any case in which he is a party. The Rules state that a party may conduct his litigation personally or by aid of an attorney, and that his appearance must be either personal or by a duly authorized member of the Bar. The individual litigant may personally do everything in the progress of the action from commencement to the termination of the litigation. A party’s representation on his own behalf is not considered to be a practice of law as "one does not practice law by acting for himself, any more than he practices medicine by rendering first aid to himself." (Santos vs. Lacurom, A.M. No. RTJ-04-1823) b. What is the student practice rule? (2%) SUGGESTED ANSWER: The Law student Practice Rule provides that a law student who has successfully completed his 3rd year of the regular four-year prescribed law curriculum and is enrolled in a recognized law school’s clinical legal education program approved by the Supreme Court, may appear without compensation in any civil, criminal or administrative case before any trial court, tribunal, board or officer, to represent indigent clients accepted by the legal clinic of the law school.

IV a. In a case for homicide filed before the Regional Trial Court (RTC), Presiding Judge Quintero issued an order for the arrest of the accused, granted a motion for the reduction of bail, and set the date for the arraignment of the accused. Subsequently, Judge Quintero inhibited himself from the case, alleging that even before the case was raffled to his court, he already had personal knowledge of the circumstances surrounding the case. Is Judge Quintero’s inhibition justified? SUGGESTED ANSWER: Yes. New Code of Judicial Conduct Canon 5, Sec 3 (a) provides: Judges shall disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially. Such proceedings include, but are not limited to instances where: a) The judge has actual bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceedings; In this case, Judge Quintero had personal knowledge of the circumstances surrounding the case, therefore his inhibition is justified.

b. After being diagnosed with stress dermatitis, Judge Rosalind, without seeking permission from the Supreme Court, refused to wear her robe during court proceedings. When her attention was 3

called, she explained that whenever she wears her robe she is reminded of her heavy caseload, thus making her tense. This, in turn, triggers the outbreak of skin rashes. Is Judge Rosalind justified in not wearing her judicial robe? Explain. SUGGESTED ANSWER: No. Under Administrative Circular No. 25, provides: “Pursuant to Sections 5 and 6, Article [VIII] of the Constitution and in order to heighten public consciousness on the solemnity of judicial proceedings, all Presiding Judges of all Trial Courts shall wear black robes during sessions of their respective Court.” In the case at bar, Judge Rosalind’s non-wearing of her robe due to her medical condition is not excusable. To be exempt from non-wearing of robe, she must first secure a Court’s permission. She cannot simply exempt from complying with requirement.

V Cliff and Greta were law school sweethearts. Cliff became a lawyer, but Greta dropped out. One day, Cliff asked Greta to sign a marriage contract. The following day, Cliff showed Greta the document already signed by an alleged solemnizing officer and two witnesses. Cliff then told Greta that they were already married and Greta consented to go on a honeymoon. Thereafter, the couple cohabited and begot a child. Two years later, Cliff left Greta and married a Venezuelan beauty. Incensed, Greta filed a disbarment complaint against Cliff. Will the case prosper? Explain. SUGGESTED ANSWER: Yes. Rule 1.01 provides that a lawyer must not engage in unlawful, dishonest, immoral or deceitful conduct. Case law decided by the Supreme Court held that a lawyer inveigling a woman into believing that they have been married to satisfy his carnal desires was disbarred.

VI Atty. Sabungero obtained a notarial commission. One Sunday, while he was at the cockpit, a person approached him with an affidavit that needed to be notarized. Atty. Sabungero immediately pulled out from his pocket his small notarial seal, and notarized the document. Was the affidavit validly notarized? Explain. No, the affidavit was not validly notarized. Under the Notarial Law, a notary public shall not perform a notarial act outside his regular place of work or business except under those exceptional occasions or situations enumerated under such law. In the case at bar, the lawyer notarized the document outside his regular place of work or business and such neither falls within the exceptions provided by said law because the act was done within a cockpit.

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VII Atty. Manuel is counsel for the defendant in a civil case pending before the RTC. After receiving the plaintiff’s Pre-Trial Brief containing the list of witnesses, Atty. Manuel interviewed some of the witnesses for the plaintiff without the consent of plaintiff’s counsel. a. Did Atty. Manuel violate any ethical standard for lawyers? Explain. SUGGESTED ANSWER: No. Canon 39 of the Code of Professional Ethics allows a lawyer to interview a prospective witness for the opposing side in any civil or criminal action without the consent of the opposing counsel or party. Thus, no violation was made by Atty. Manuel. b. Will your answer be the same if it was the plaintiff who was interviewed by Atty. Manuel without the consent of plaintiff’s counsel? Explain. SUGGESTED ANSWER: No. The case will then fall under Canon 9 of the Canons of Professional Ethics which states that a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel, much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law. VIII Court of Appeals (CA) Justice Juris was administratively charged with gross ignorance of the law for having issued an order “temporarily enjoining” the implementation of a writ of execution, and for having issued another order for the parties to “maintain the status quo” in the same case. Both orders are obviously without any legal basis and violate CA rules. In his defense, Justice Juris claims that the challenged orders were collegial acts of the CA Division to which he belonged. Thus, he posits that the charge should not be filed against him alone, but should include the two other CA justices in the Division. Is the contention of Justice Juris tenable? Explain. (3%) SUGGESTED ANSWER: •

As to the orders being collegial acts of the CA Division, Justice Juris could not be held liable alone. Collegial Division members share any decision on what proceedings to adopt in the conduct of its business. They act by consensus or majority rule. Moreover, error or mistake of a judge or a justice, as basis for disciplinary action must be gross or patent, malicious, deliberate or in bad faith. It is only when he acts fraudulently or corruptly or with gross ignorance that he may be administratively 5

held liable. He cannot be subjected to liability – for any of his official acts, no matter how erroneous, as long as he acts in good faith. In this case there is no showing of Justice Juris acting in bad faith together with the collegiate division. •

No, such contention is untenable. The Internal Rules of the Court of Appeals, particularly Sec. 5, Rule VI thereof, provides that all members of the Division shall act upon an application for TRO and writ of preliminary injunction. However, if only the ponente is present, then the latter shall act alone upon the application. Thus, if it was the Division that issued the assailed orders, then all its members should be held liable. Likewise, if Justice Juris acted alone, then he must bear sole liability. In the case at bar, Justice Juris seemed to have acted alone.

IX – PRACTICAL EXERCISES X – PRACTICAL EXERCISES

PART II XI-TRUE or FALSE TRUE or FALSE. Answer TRUE if the statement is true, or FALSE if the statement is false. Explain your answer in not more than 2 sentences. a.The duty of a lawyer to his client is more paramount than his duty to the Court. FALSE. A laywer's paramount duty is not to his client but to the administration of justice, to which his client's success is wholly subordinate. This is because he is an officer of the court (Canon 10, CPR). b.It is ethical for a lawyer to advise his client to enter a plea of guilty in a criminal case if the lawyer is personally convinced that he cannot win the case for his client. TRUE. When advising his client, shall give candid honest opinion on the merits and probable results of the client's case, neither overstating nor understating the prospects of the case (CANON 15, Rule 15.05). c. There is no presumption of innocence or improbability of wrongdoing in an attorney’s favor when he deals with his client concurrently as lawyer and as businessman. TRUE. Jurisprudence has it that business transactions between a lawyer and his client are disfavored and discouraged by policy of law. This is because of, by virtue of his office, an attorney is in an easy position to take advantage of the credulity and ignorance of his client. Thus, no presumption of innocence or improbability of wrongdoing is considered in an attorney's favor. d. The satisfaction of a judgment debt does not, by itself, bar or extinguish the attorney’s liens, 6

except when there has been a waiver by the lawyer, as shown by his conduct or his passive omission. TRUE. Case law provides that the satisfaction of a judgment, in general, does not by itself bar or extinguish the attorney’s liens, as the court may even vacate such satisfaction and enforce judgment for the amount of the lien. However, the satisfaction of the judgment extinguishes the lien if there has been a waiver, as shown either by the attorney’s conduct or by his passive omission. e. A companion or employee of the judge who lives in the judge’s household is included in the definition of the "judge’s family." TRUE. A judge's family as defined in the New Code of Judicial conduct for the Philippines "includes judge's spouse, son, daughter, son-in-law, daughter-in-law, and any other relative by consanguinity or affinity within the sixth civil degree or person who is a companion or employee of the judge and who lives in the judge's household". XII - OBJECTIVE

XIII Atty. Hyde, a bachelor, practices law in the Philippines. On long weekends, he dates beautiful actresses in Hong Kong. Kristine, a neighbor in the Philippines, filed with the Supreme Court an administrative complaint against the lawyer because of sex videos uploaded through the internet showing Atty. Hyde’s sordid dalliance with the actresses in Hong Kong. In his answer, Atty. Hyde (1) questions the legal personality and interest of Kristine to institute the complaint and (2) insists that he is a bachelor and the sex videos relate to his private life which is outside public scrutiny and have nothing to do with his law practice. Rule on the validity of Atty. Hyde’s defenses. (5%) a. Atty. Hyde’s first defense is untenable. It must be emphasized that a disbarment proceeding is a class by itself. It is sui generis. Thus, it is neither a criminal nor a civil action. The legal personality of Kristine to institute the case is immaterial; disbarment proceedings can be instituted without a complaint (Rule 139-B, RRC). b. Hyde’s defense is untenable. It is provided in Rule 7.03 Canon 7 of the Code of Professional Responsibility that “a lawyer shall not engage in conduct that adversely reflects on his fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous manner to the discredit of the legal profession.” It is a lawyer’s duty to the Legal profession to uphold its integrity and dignity not only during his practice of law but also during the times he carries on his activities as a private individual. Gross immorality is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree (Reyes vs Wong 1975). In the case at bar, Atty. Hyde asserts that he is a bachelor and his affairs with women abroad is outside public scrutiny of being a lawyer. True, that mere intimacy between a man and a 7

woman, either of whom possesses no legal impediment to marry, Is neither so corrupt nor so unprincipled as to warrant imposition of disciplinary action. However, the fact that he video tapes his sexual endeavors and then later on be seen on the internet, makes his actions equivalent to gross immorality. Such act may constitute to a pornography which is a felony and may be covered by the definition of gross immorality.

XIV Marlyn, a widow, engaged the services of Atty. Romanito in order to avert the foreclosure of several parcels of land mortgaged by her late husband to several creditors. Atty. Romanito advised the widow to execute in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors. The widow agreed. Atty. Romanito did not sell the properties, but paid the mortgage creditors with his own funds, and had the land titles registered in his name. Atty. Romanito succeeds in averting the foreclosure. Is he administratively liable? Reasons. (3%) SUGGESTED ANSWER: Yes, Atty. Romanito is administratively liable on ground of “Deceit” (Section 27 of the Rule 138 of the Revised Rules of Court). Deceit is present in the instant case such that in executing in his favor deeds of sale over the properties, so that he could sell them and generate funds to pay her creditors, but instead paid the mortgage creditors with his own funds, Atty. Romanito falsely represent himself, tricked his client (who is ignorant of the facts) and had the land titles registered in his name, to the prejudice and damage of the client. XV Atty. Wilmar represented Beatriz in a partition case among heirs, and won. When Wilmar demanded payment of attorney’s fees, Beatriz refused to pay. Wilmar sued Beatriz for the unpaid attorney’s fees and obtained a favorable judgment. Thereafter, Beatriz filed an administrative complaint against Wilmar claiming that he lied when he stated in his claim for attorney’s fees that the subject of the partition case involved the entire estate of the deceased when, in fact, it covered only 50% thereof. Wilmar set up the defenses that (1) Beatriz filed the complaint only to delay the execution of the judgment ordering her to pay attorney’s fees and (2) Beatriz engaged in forumshopping. Are the defenses of Atty. Wilmar tenable? Explain. SUGGESTED ANSWER: a. The defense of Atty. Wilmar is tenable. Beatriz should have raised Atty. Wilmar’s alleged wrongful deed during the collection suit that was instituted by the latter. Instead, Beatriz filed an administrative complaint after Atty. Wilmar obtained the favorable judgment in the collection suit. With these circumstances, it can be culled that Beatriz is just trying to delay the execution of the judgment. a. No, the complaint filed by Beatriz, being an administrative case, is a distinct and separate action from the case filed by Atty. Wilmar against Beatriz. Hence, a defense as such will not prosper. 8

b. No, there is no forum shopping in this case. Beatriz’ mere filing of an administrative case based on the same incident (claim for attorney’s fees) does not necessarily constitute forum shopping. XVI Atty. Simeon persuaded Armando, Benigno and Ciriaco to invest in a business venture that later went bankrupt. Armando, Benigno and Ciriaco charged Atty. Simeon with estafa. Simultaneously, they filed an administrative complaint against the lawyer with the Supreme Court. a. If Simeon is convicted of estafa, will he be disbarred? Explain. SUGGESTED ANSWER: Yes, Atty. Simeon will be disbarred. There is no question that the crime of estafa is one which involves moral turpitude within the purview of Section 27, Rule 138, of the Rules of Court. b. If Simeon is acquitted of the estafa charge, will the disbarment complaint be dismissed? Explain. It is likewise settled that a disbarment proceeding is separate and distinct from a criminal action filed against a lawyer despite having involved the same set of facts. Jurisprudence has it “that a finding of guilt in the criminal case will not necessarily result in a finding of liability in the administrative case. Conversely, the respondent’s acquittal does not necessarily exculpate him administratively. XVII

When Atty. Romualdo interviewed his client, Vicente, who is accused of murder, the latter confessed that he killed the victim in cold blood. Vicente also said that when he takes the witness stand, he will deny having done so. Is Atty. Romualdo obliged, under his oath as lawyer, to inform the judge that [a] his client is guilty and [b] his client will commit perjury on the witness stand? Explain. SUGGESTED ANSWER: a. No, Atty, Romualdo has no obligation to tell the judge that his client, Vicente, is guilty. Canon 21 of the Code of Professional Responsibility provides that the lawyer shall preserve the confidence and secrets of his client. The judge must come up with a decision according to the evidence presented. b. Atty. Romualdo can reveal to the judge that Vicente will commit perjury on the witness stand. This is already a revelation of a prospective crime and thus, lies outside the mantle of 9

privileged communication. XVIII On a Saturday, Atty. Paterno filed a petition for a writ of amparo with the Court of Appeals (CA). Impelled by the urgency for the issuance of the writ, Atty. Paterno persuaded his friend, CA Justice Johnny de la Cruz, to issue the writ of amparo and the notice of hearing without the signature of the two other Justices-members of the CA division. Are Atty. Paterno and Justice de la Cruz guilty of unethical conduct? Explain. SUGGESTED ANSWER: Yes, both of them are guilty of unethical conduct. Atty. Paterno violated Canon 13 of the Code of Professional Responsibility which states that a lawyer must refrain from any impropriety which tends to influence or gives the appearance of influencing the court. On the other hand, CA Justice Johnny dela Cruz violated Canon 3 of the New Code of Judicial Conduct which states that Judges shall perform their judicial duties without favor, bias or prejudice.

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